U.S. v. Hussein

• Decision Date: 30 October 2003
• Docket Number: No. 03-1310.,03-1310.
• Citation: 351 F.3d 9
• Parties: UNITED STATES of America, Appellee, v. Abdigani HUSSEIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

351 F.3d 9

UNITED STATES of America, Appellee, v. Abdigani HUSSEIN, Defendant, Appellant.

No. 03-1310.

United States Court of Appeals, First Circuit.

Heard September 5, 2003.

Decided October 30, 2003.

COPYRIGHT MATERIAL OMITTED

Sidney Leighton Moore, for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SILER,^* Senior Circuit Judge.

SELYA, Circuit Judge.

A jury found defendant-appellant Abdigani Hussein guilty of knowingly possessing and intending to distribute khat, a plant naturally containing the chemical stimulant cathinone (a Schedule I controlled substance), in violation of section 841(a)(1) of the Controlled Substances Act (CSA). The district court refused to set aside the verdict and sentenced Hussein to one year's probation. Hussein appeals, asserting that (i) the CSA did not afford him fair warning that possession of khat was illegal, and (ii) the government did not sufficiently prove his knowing possession of a controlled substance.

Hussein's first assignment of error does not withstand close scrutiny. His second entails a more complicated analysis, in the course of which we break new ground. There is no proof that Hussein knew what cathinone was or that he was dealing with it. Nevertheless, the evidence suffices to show that he knew — in a general sense — that he was dealing with a controlled substance. We hold that this is enough: the government can satisfy the scienter requirement of section 841(a)(1) notwithstanding the fact that the accused was unaware of the drug's precise identity so long as it is able to prove beyond a reasonable doubt that he knew that he was dealing with a substance regulated by federal drug abuse laws.

Having found Hussein's arguments wanting, we affirm his conviction.

I. BACKGROUND

Following the conventional praxis, we recount the facts in the light most favorable to the verdict, consistent with record support. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Noah, 130 F.3d 490, 493 (1st Cir.1997). The story began on March 22, 2002, when three packages marked "Documents" arrived at the Federal Express office in Portland, Maine. Noticing that they were wet, Federal Express employees opened them and saw green, leafy plants. Mistaking the contents for marijuana, the employees summoned representatives of the federal Drug Enforcement Administration (DEA).

After testing, DEA agents determined that the leafy substance was not marijuana but khat (Catha edulis), a plant grown in East Africa and the Arabian peninsula. The leaves of this plant are traditionally chewed or brewed into tea to produce a stimulant effect on the central nervous system. When first cut, the leaves contain the chemical stimulant cathinone, which over time degrades into the milder stimulant cathine. The evidence presented at trial does not disclose whether either cathinone or cathine ever completely disappears from khat.

DEA agents planned a controlled delivery and watched as the appellant picked up one of the three boxes at the Federal Express office. The appellant's arrest followed. Evidence at trial established that the shipment of khat contained detectable amounts of cathinone (no tests were run for cathine). More khat was discovered in the appellant's car, and that material contained detectable amounts of both chemicals.

During post-arrest questioning, the appellant admitted knowing that the box he essayed to retrieve contained khat. He also admitted knowing that khat acts as a stimulant, telling the agents that "when you chew it ... you stay awake, like coffee." When the agents inquired whether he knew that possessing khat was illegal, he replied: "No, not really."

The ensuing interrogation uncovered the existence of an elaborate distribution scheme (the mechanics of which were known to the appellant). The appellant was sent to retrieve the package by a friend, one Gani Mohamed, who peddled khat to the Somali community in Lewiston, Maine for $6 to $8 a bundle. Mohamed had used the appellant's former address as the intended destination when arranging to ship the package and gave the appellant the Federal Express tracking number to facilitate the retrieval. This was the appellant's second or third such mission (the record is indistinct on this point), and the way in which it was structured formed part of a pattern. Mohamed routinely used fake addresses as intended destinations for khat shipments and recruited different individuals to pick up the packages. Mohamed promised to pay the appellant in khat for his services (as he had done before).

The government charged the appellant with "knowingly ... possess[ing] with intent to distribute a substance containing cathinone, a Schedule I controlled substance," in violation of 21 U.S.C. § 841(a)(1). The case was tried to a jury. At the close of all the evidence, the appellant moved for judgment of acquittal. See Fed.R.Crim.P. 29. The court reserved decision and the jury found the appellant guilty as charged.

In due season, the court revisited and denied the appellant's Rule 29 motion. United States v. Hussein, 230 F.Supp.2d 109, 110 (D.Me.2002). This timely appeal ensued. In it, the appellant advances arguments identical to those raised in his Rule 29 motion: (i) that the statute of conviction provided insufficient notice that his conduct was illegal (and, thus, his conviction offends due process), and (ii) that the evidence was insufficient to prove that he knowingly possessed a controlled substance. We address each of these arguments, pausing first to erect the pertinent statutory framework.

II. THE STATUTORY FRAMEWORK

The CSA makes it illegal for any person knowingly to possess a controlled substance with intent to distribute. 21 U.S.C. § 841(a)(1). For the purpose of this statutory scheme, a "controlled substance" is one listed in Schedules I through IV of the CSA. See id. § 802(6) (defining "controlled substance"); see also id. § 812 (codifying the schedules). Neither cathinone nor cathine appear in any of the schedules. But DEA regulations — promulgated after passage of the CSA and published in the Code of Federal Regulations — have expressly classified cathinone as a Schedule I controlled substance, 21 C.F.R. § 1308.11(f)(2) (1993), and cathine as a Schedule IV controlled substance, id. § 1308.14(e) (1988). These accretions have the force of law. See 21 U.S.C. § 811(a) (authorizing the Attorney General to add substances to the CSA schedules); 28 C.F.R. § 0.100(b) (delegating that authority to the DEA). Thus, cathinone and cathine are controlled substances within the purview of the CSA.

Determining whether khat — as distinguished from its chemical building blocks — is a controlled substance requires us to navigate a different statutory course. Khat is not listed by name as a controlled substance in any of the schedules. The DEA regulations provide, however, that "any material, compound, mixture, or preparation which contains" cathinone is itself a Schedule I controlled substance and is subject to the same prohibitions as the chemical itself. 21 C.F.R. § 1308.11(f)(2); see also id. § 1308.14(e) (declaring that "any material, compound, mixture, or preparation" containing cathine is a Schedule IV controlled substance and treated similarly). When khat is first cut, it contains cathinone and is therefore a Schedule I controlled substance. If and when the cathinone mutates into cathine, khat migrates to Schedule IV.

The appellant does not dispute that khat is a controlled substance when it contains cathinone or cathine. He reminds us, however, that the word "khat" appears in neither the schedules nor the amendments thereto. The only published references to khat that are even arguably pertinent here are in the Federal Register. On January 14, 1993, the DEA promulgated a final rule placing cathinone in Schedule I. 58 Fed. Reg. 4,316. Appended to the rule — in a section entitled "Supplementary Information" — is a description of the link between khat and cathinone:

Cathinone is the major psychoactive component of the plant Catha edulis (khat). The young leaves of khat are chewed for a stimulant effect. Enactment of this rule results in the placement of any material which contains cathinone into Schedule I. When khat contains cathinone, khat is a Schedule I substance.... When khat does not contain cathinone, but does contain cathine, khat is a Schedule IV substance.

Id. at 4,317. A similar supplementary notice was published with the rule adding cathine to Schedule IV. See 53 Fed.Reg. 17,459, 17,459. The rules themselves were later published in the Code of Federal Regulations (CFR), but the supplementary information was never formally incorporated into the rules, and, thus, the references to khat do not appear in the CFR.

Against this backdrop, we turn to the appellant's due process and sufficiency claims.

III. THE DUE PROCESS CLAIM

Initially, the appellant complains that applying section 841(a)(1) to him violates the Due Process Clause because the CSA did not provide fair warning that his actions were illegal. Assessing this complaint requires an understanding of its constitutional underpinnings.

The criminal law should not be a series of traps for the unwary. To that end, the Due Process Clause demands that criminal statutes describe each particular offense with sufficient definiteness to "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). A statute must give fair warning, "in language that the common world will understand, of what the law intends to do if a certain line is passed." McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931). "The underlying principle is that no man shall be held criminally...